TelOne v Tungamirai Mutambisi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/181/14
HELD AT HARARE 28TH JANUARY 2014
CASE NO LC/H/181/14
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/181/14

HELD AT HARARE 28TH JANUARY 2014		CASE NO LC/H/460/12

& 28TH MARCH 2014

In the matter between:-

TELONE						Appellant

And

TUNGAMIRAI MUTAMBISI			Respondent

Before The Honourable E Makamure, Judge

For Appellant		Mr J Dondo (Legal Practitioner)

For Respondent		Mr B Peresuh (Legal Practitioner)

MAKAMURE, J:

The Respondent was employed by the appellant.  He was nominated to go and attend a presentation or workshop.  On his way to the workshop his motor vehicle broke down.  He failed to communicate his predicament to his employers because he did not have a mobile cell phone.  He was rescued at about 1800 hours.

As a result of the break down of his motor vehicle he failed to attend the workshop in question.  When he returned to his work station which was on a Monday he reported his failure to his superior.  His superior took exception to the respondent’s conduct and initiated disciplinary proceedings.  A number of charges were levelled against him.  However he was found guilty of violating category 4 (23) of the applicable Code, that is:

‘Gross disregard of standing procedures/rules including disregarding standing rules/procedure resulting in potential financial loss/prejudice to the company’

The Regional Hearing Committee which conducted the initial hearing had

a tie when members of its committee voted for the appropriate penalty.  The Chairperson exercised his casting vote and the dismissal penalty was imposed on the respondent.

The respondent was aggrieved by the penalty and he appealed to the National Hearing Committee (NHC).  The NHC confirmed the guilty verdict but altered the penalty to a Final Written Warning.  In arriving at that decision the record (p12) shows that

“After further debate the National Hearing Committee finally unanimously agreed that charge 4 (23) was appropriate…  They however agreed that the penalty of dismissal imposed by the Hearing Committee was excessive considering the circumstances of the case.  They concurred that the Appellant’s defence was plausible as he used his personal vehicle which he claims broke down and the Controlling Officer did not bother to institute investigations to establish the veracity of these claims.  His claim that he did not have a phone to communicate his predicament at the time was also not challenged.”

The NHC was of the view that under the circumstances the penalty of dismissal was excessive. The NHC accordingly exercised its discretion in terms of section 8.2.3 (a) of the applicable code to vary the penalty.   Section 8.2.3. (a) empowers the NHC to “uphold, set aside or vary decision of the hearing committee.”

The appellant was aggrieved by that decision.  It appealed to this Court on the basis that firstly the charge with which the Respondent was convicted of warrants dismissal upon a first breach and, secondly, the penalty was appropriate under the circumstances and that there was no need to interfere.  It must be noted that the NHC is part of the domestic remedies.  This is the Code which binds the two parties.  It can therefore not be perceived as an appeal body outside the domestic remedies.  It is not a court of law.   As a general principle appeal courts do not interfere with findings of lower tribunal unless there been a misdirection.  (See PassmoreMalimanjani v CABS SC 47/07).  Apart from the fact that where dismissal is the appropriate penalty, an employer can in their discretion, impose a different penalty in the present matter the applicable Code  actuallyempowers its appellate body to vary its lower tribunal’s decision.  In Zikiti v United Bottlers 1998 (1) ZLR 389 (HC), the High Court held that where a code provides a penalty theappropriate  tribunal may decide to impose the maximum or a lesser penalty.  This is exactly what the NHC did.  (See also COHCOH Enterprises (Pvt) Ltd v I.T. Mativenga(2)

P.Kusowa SC 30/2001).

Further the NHC actually debated and came up with a seasoned and reasoned decision.  It was not made willy-nilly.  In the result I find that there is no merit in the appeal.

Accordingly it is ordered the appeal be and is hereby dismissed with costs.

Dondo& Partners, Appellant’s Legal Practitioners

Honey and Blanckenberg, Respondent’s Legal Practitioners